Citation Nr: 21061460 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 12-34 192 DATE: October 4, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder with major depressive disorder (hereinafter "PTSD") is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's PTSD symptoms do not more nearly approximate total occupational and social impairment. 2. The evidence is in equipoise as to whether the Veteran has been rendered unable to maintain gainful employment due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1966 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for depressive disorder not otherwise specified and assigned a 10 percent disability rating, effective February 17, 2010. The RO also denied service connection for PTSD. In a February 2014 rating decision, the RO awarded an increased rating of 30 percent for the Veteran's acquired psychiatric disorder, diagnosed as other specified trauma and stressor related disorder, previously evaluated as depressive disorder not otherwise specified, effective February 17, 2010. In October 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. In August 2017, the Veteran was notified that the VLJ before whom he testified was no longer employed by the Board and he was provided an opportunity to request another Board hearing. To date, the Board has not received any response from the Veteran. Accordingly, the Board will assume that the Veteran does not want another hearing and will proceed with adjudication. In December 2015, the Board remanded the issues of entitlement to an initial rating in excess of 30 percent for other specified trauma and stressor related disorder, entitlement to service connection for an acquired psychiatric disorder other than the Veteran's already service-connected "other specified trauma and stressor related disorder," to include PTSD, and entitlement to a TDIU for further development. In an April 2017 rating decision, the RO awarded an increased rating of 50 percent for the Veteran's major depressive disorder, effective February 17, 2010, and denied entitlement to a TDIU. In September 2017, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder other than his already service-connected major depressive disorder, to include PTSD, entitlement to an initial rating in excess of 50 percent for major depressive disorder, and entitlement to a TDIU for further development. In a July 2018 rating decision, the RO awarded an increased rating of 70 percent for the Veteran's PTSD with major depressive disorder, effective February 21, 2017. In February 2019, the Board awarded an initial rating of 70 percent for the Veteran's PTSD for the entire period on appeal, denied entitlement to a disability rating in excess of 70 percent for PTSD, and denied entitlement to a TDIU. The Veteran timely appealed the Board's February 2019 decision to the United States Court of Appeals for Veterans Claims (Court) which, by way of a February 2020 Order, granted the parties' January 2020 Joint Motion for Partial Remand (JMPR), vacated the Board's February 2019 decision insofar as it denied entitlement to an initial disability rating in excess of 70 percent for the Veteran's PTSD and entitlement to a TDIU, and remanded the issues for further adjudication consistent with the JMPR. In decisions dated August 2020 and April 2021, the Board remanded the matter for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where a veteran is diagnosed with multiple disabilities of the same body part or system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent rating is warranted if the evidence establishes there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). In this matter, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the PTSD claim is governed by DSM-5 and the GAF scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's General Rating Formula is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. However, the Court further indicated that without those examples, differentiating between rating evaluations would be extremely ambiguous. In this matter, the Veteran is currently in receipt of an initial disability rating of 70 percent for PTSD for the entire period on appeal. He asserts that a higher rating is warranted. On review, the Board finds that the preponderance of the evidence, both lay and medical, is against the Veteran's claim for a disability rating in excess of 70 percent for PTSD. Specifically, his PTSD symptoms do not more nearly approximate total occupational and social impairment. First, the Board acknowledges that the Veteran has endorsed suicidal ideation, which is similar to the symptom of persistent danger of self-harm contemplated by the 100 percent rating criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, there is no evidence that the severity, frequency, and duration of the Veteran's suicidal ideation has risen to the level contemplated by the 100 percent rating criteria (i.e., persistent danger of self-harm). Notably, the Veteran denied current suicidal ideation in VA examinations dated May 2014, February 2017, and July 2021, and the July 2021 VA examiner found that there was no evidence to suggest that the Veteran experienced active suicidal ideation in recent years. Therefore, the Board does not find that his symptom of suicidal ideation more nearly approximates persistent danger of self-harm, as contemplated by the 100 percent rating criteria. Second, the Board notes that, in an October 2010 letter to his private treatment provider, the Veteran wrote, "Sometimes when I'm walking or working outside, I'll hear my name called in warning...And I'll twist around to look behind me but see nothing. If I'm with people, they will deny saying or hearing any such words. I don't normally have these auditory experiences when I'm inside." The July 2021 VA examiner was asked to address this evidence of an auditory hallucination. The July 2021 VA examiner wrote, "Per record review since 2010, the Veteran has not manifested other symptoms suggestive of active psychosis. He does not have a history of disruptions to his thoughts and perceptions which make it difficult for him to recognize reality. Since this report in 2010, the Veteran has not reported or exhibited hallucinations or other symptoms of active psychosis in any of his examinations or encounters with medical professionals. In sum, there is no evidence that the Veteran experiences persistent auditory hallucinations." Based on the foregoing, the Board finds that the Veteran's October 2010 report of only sometimes hearing his name called in warning does not more nearly approximate the severity, frequency, and duration of symptoms contemplated by the 100 percent rating criteria (i.e., persistent hallucinations). Third, while the Veteran has competently reported subjective issues with his memory, he is not competent to provide a clinical assessment of his memory loss, which is complex and generally beyond the competently of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the clinical assessments in VA and private treatment records, and the April 2010, May 2014, February 2017, and July 2021 VA examinations, which indicate that the Veteran did not display signs of memory impairment. See private treatment records dated June 2017 to August 2020; VA treatment records dated March 2019 to June 2020. Therefore, the Board finds that the severity, frequency, and duration of the Veteran's subjective reports of issues with his memory do not more nearly approximate memory loss for names of close relatives, own occupation, or own name, as contemplated by the 100 percent rating criteria. Fourth, the Board acknowledges that during the October 2015 Board hearing, the Veteran testified that he neglected his hygiene, developed gingivitis, and had a broken tooth which he failed to get fixed. The July 2021 VA examiner was asked to address this evidence. The July 2021 VA examiner wrote, "The Veteran was noted to adequately perform activities of daily living in his 2010 VA Evaluation...As a whole, the medical record demonstrates the Veteran's [] ability to engage in basic hygiene evidenced by reports of the Veteran arranging his own medical treatment, presenting for medical treatment and evaluations on time, appropriately dressed and well groomed. C&P Examination of diabetic Neuropathy conducted 5/5/2016 (annotated above) indicates active functioning ability. Currently, the Veteran exercise[s] consistently on a daily basis which he has reported with consistency at medical encounters in recent year. In addition, he engages in other self-care activities which would require an even higher degree of functioning (e.g., cooks regularly, assists partner in business, travels to visit family, organizes a volunteer event, drives other Veterans through Dial-a-Ride). In sum, the Veteran does not currently evidence clinically significant levels of difficulty in maintaining minimal personal hygiene or completing other activities of daily living." The Board notes that in the July 2020 private medical opinion, the Veteran's treating psychologist wrote that the Veteran "has exhibited recurrent disturbances of motivation and mood. This often seems to manifest in difficulties in maintaining good habits with sleep, diet, and basic physical hygiene." The Board finds that this characterization of the Veteran's level of impairment ("difficulties in maintaining good habits...") is more similar to a neglect of personal hygiene, rather than an inability to perform activities of daily living. Furthermore, the Board affords more probative weight to the medical opinion offered by the July 2021 VA examiner as it was based on a comprehensive review of the Veteran's medical records for the entire period on appeal. Based on the foregoing, the Board finds that the Veteran's symptoms do not more nearly approximate the severity, frequency, and duration of symptoms contemplated by the 100 percent rating criteria (i.e., an intermittent inability to perform activities of daily living, to include maintenance of minimal personal hygiene). In conclusion, the Board finds that the Veteran's PTSD symptoms are not shown to be productive of total occupational and social impairment, as there is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name, such that would warrant a higher rating of 100 percent under the General Rating Formula. Entitlement to an initial disability rating in excess of 70 percent for PTSD is therefore denied. 2. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. See 38 U.S.C. § 1155. Here, the Veteran is in receipt of the following disability ratings for his service-connected disabilities: PTSD (70 percent from February 17, 2010); diabetes mellitus (20 percent from January 29, 2016); tinnitus (10 percent from October 28, 2008), and hearing loss (0 percent from October 28, 2008). Therefore, the Veteran has met the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a) for the entire period on appeal. The remaining question is whether the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation. The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). After careful consideration of the record and resolution of all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unemployable by reason of his service-connected PTSD. Specifically, the Board finds that the Veteran would not have been able to maintain any type of employment that was relevant to his educational background and work experience. In this regard, the Board notes that in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). As to the economic component of a substantially gainful occupation, the Board finds that the Veteran was either unemployed, or earned marginal income, for the entire period on appeal. In a September 2020 VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he was employed as a defense attorney from September 1984 to January 2007 and as a school bus driver from September 2008 to March 2011. Regarding his employment as a school bus driver, the Veteran reported that he worked 15 hours per week with highest gross earnings of $700.00 per month. Based on this information, the Veteran's annual income was, at most, $8,400.00 while working as a school bus driver during the period on appeal. As noted previously, the economic component of a substantially gainful occupation means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The poverty threshold for one person under age 65 years was $11,344.00 in 2010 and $11,702.00 in 2011. As such, the Veteran's employment as a school bus driver did not earn more than marginal income and is therefore not considered a substantially gainful occupation. While the Veteran reported driving for Dial-a-Bus from 2017 to 2019, this was done on a volunteer basis. See February 2017 VA mental disorders examination report; VA treatment records dated May 2019 to June 2020; July 2021 VA PTSD examination report. There is no further evidence of employment earning more than marginal income during the period on appeal. As to the non-economic component of a substantially gainful occupation, the Board finds that the evidence is at least in equipoise as to whether the Veteran's mental ability to complete the demands of his prior occupations as an attorney and a school bus driver was severely impacted by his service-connected PTSD for the entire period on appeal. The Board acknowledges that the May 2014 and July 2021 VA examiners determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and that the April 2010 VA examiner noted that the Veteran "essentially reported no occupational impairment from his depression." The May 2014 and July 2021 VA examiners found it significant that the Veteran continued to be involved in organizing community events and anticipated returning to his volunteer work once COVID-19 restrictions lift. However, the February 2017 VA examiner provided a differing opinion, noting that the Veteran's depression was "serious and would likely compromise his motivation to complete work assignments. He would also require working in an environment as free from stress as possible, due to his deficient coping skills. Furthermore, [the Veteran's] depression, due to its severity, results in fatigue and difficulty concentrating, which would inevitably affect his work performance." As to his previous employment as an attorney, the Veteran explained that he "was a good employee except for PTSD[-]related anxiety attacks, crying jags and angry tirades." See September 2020 VA 21-4192 Request for Employment Information. As to his previous employment as a school bus driver, the Veteran reported that his PTSD caused him to get angry all the time, he had issues dealing with the school children, and he was unable to cope with stressful situations. See September 2020 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran also noted that he had multiple complaints from the children's parents due to his temper. Id. Additionally, in a July 2020 private medical opinion, the Veteran's treating psychologist, Dr. N.B., wrote that the Veteran "feels that his symptoms and impairments preclude working due to difficulty concentrating, low stress tolerance, and his tendency to have his symptoms triggered by certain types of situations that he may face in the workplace (e.g., encountering people of Asian descent)." For these reasons, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted for the entire period on appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.